Today's oral argument before the Supreme Court on the issue of police searches of cell phones and smartphones left much up in the air.

As James Joyner previewed yesterday, today the Supreme Court heard oral argument in a case involving the question of whether or not law enforcement should be required to obtain a search warrant before examining the contents of a cell phone or smart phone. As I have said several times in the past in similar situations, it’s often a fool’s errand to try to anticipate which way the Court is likely to rule based on oral argument. However, based on the reports of today’s arguments, it appears that the Justices are somewhat torn about how to apply the principles of the Fourth Amendment and the case law that has interpreted it to the technology of the 21st Century:

WASHINGTON — The Supreme Court on Tuesday seemed torn as it considered a pair of cases about whether the police need warrants to search the cellphones of people they arrest.

Some justices seemed inclined to apply precedents saying that people under arrest lose significant privacy rights. Those decisions say warrantless searches in connection with arrests are justified by the need to find weapons and to prevent the destruction of evidence.

“Our rule has been that if you carry it on your person,” Justice Antonin Scalia said, “it is subject to seizure and examination.”

Other justices said the vast amounts of data held on smartphones warranted a different approach under the Fourth Amendment, which bars unreasonable searches.

“We’re living in a new world,” said Justice Anthony M. Kennedy. “Someone arrested for a minor crime has his whole life exposed.”

Several justices noted that modern smartphones contain troves of private materials, including bank and medical records.

“Most people now do carry their lives on their cellphones, and that will only grow every year as young people take over the world,” Justice Elena Kagan said.

But Chief Justice John G. Roberts Jr. said that phones also contained “information that is specifically designed to be made public,” mentioning Facebook and Twitter.

Trying to imagine all of the things that an individual might keep stored on a cellphone, and trying to decide how much privacy — if any — each item ought to have, the Supreme Court on Tuesday reached for a new digital-age constitutional formula for police searches of those ubiquitous devices, but found that maddeningly elusive.

Two hours of argument, one each on two different generations of cellphone technology, left the strong impression that the Justices would stay away from flat rules: either that police can always search any such device that they take from an arrested person, or that they could not search its contents at all.

But, as Justice Anthony M. Kennedy said in the first argument, in Riley v. California, what the Court was seeking was “some standard on where we draw the line.”

But, as the discussion went on, it seemed that there were two lines that would have to be drawn: one, to define the kind of cellphone contents that were so private that they would be insulated from search; and, second, to define the limits of a search warrant so that the police stayed away from what was private.

The Justices seemed well aware that, even if they somehow were able to craft some Fourth Amendment limitations on searching cellphones, they still would have real difficulty in implementing those limits by telling a magistrate how to write a search warrant to guide the police. “A warrant for what?” Justices Ruth Bader Ginsburg and Antonin Scalia both asked.

“What would police have to show [to get a warrant]?” Ginsburg added.

Although there was a lot of talk about how to figure out what most cellphone users believed should be private among the contents on their devices, there did seem to be a rough consensus that they do believe that, to some hard-to-define degree.

Several Justices, including Elena Kagan and Sonia Sotomayor, suggested that cellphones now contain data “about one’s whole life,” including its most intimate details. Chief Justice John G. Roberts, Jr., however, wondered how private some contents would be if it were passed out to the public via a social network like Facebook.

Stanford law professor Jeffrey L. Fisher, arguing in the Riley case, appeared to have considerable success with his argument that cellphones and their “digital information” were somehow different from other objects that police might take from an arrestee. The problem, though, was how the Justices decide is different about them, constitutionally.

Even so, Fisher’s argument created an atmosphere in which it was harder for his two government opponents — California Solicitor General Edward G. DuMont and Deputy U.S. Solicitor General Michael R. Dreeben — to press their argument that the Court should apply a categorical rule that police do not need a warrant to inspect a cellphone seized from a suspect..

Based on the argument, it appears that the Justices may be searching for some way to draw a distinction in terms of what kind of data can be taken from a phone without a warrant and which cannot. In some sense, they need to at least try to do this in the opinions in these cases if only to give guidance to law enforcement as well the U.S. District Court and Magistrate Judges who will have to both draft search warrants that will apply to this technology and rule on whether or not a particular search was valid under the Fourth Amendment if it was conducted without benefit of a warrant. Inevitably, this issue, or some tangential piece of it, will be back before the Court in the future as Courts across the country struggle to apply the Courts rulings to the cases in front of them. For the immediate future, though, the Court will have to come up with some kind of baseline rule that can be applied in these situations. How that rule is applied in specific cases, and what that means going forward, will have to wait until actual cases get before actual Judges, though.

If there is anything to be optimistic about here, though, it is that it would appear unlikely that there is a majority of Justices to support the proposition that law enforcement would never need a search warrant to examine the contents of a cell phone or smartphone. Several of the Justices pointed out the fact that these phones now contain much more than a record of who a person has called, which is a matter of record available from phone companies to begin with. Allowing that information to fall into the hands of police without first requiring them to establish that they have probable cause to examine it would be a serious attack on personal privacy. Of course, even if the Court comes down with a strong ruling in favor of the idea that a warrant is required to search a phone in most cases, there will always be exceptions, and it will be the job of the courts to hammer out what those exceptions actually are. As a preliminary matter, though, it does appear that the Court does recognize that there is a need to do something more than just give free reign to the police in these situations, and that is at least a start.

The transcript of oral argument for United States v. Wurie can be found here, and the transcript of oral argument for Riley v. California can be found here. Both transcripts are posted at Scribd.

Comments

The rule should be, IMO, that theyshould have to get a warrant, absent exigent circumstances(the possibility that the phone might be remotely wiped, or the need to avoid some threat to life).
I expect the Roberts court to give the police more freedom than that, however.
Nitpicker alert, Doug: In the penultimate paragraph, its “free rein”, not “reign.”. And yes, I know I’m a terrible typist myself. But you are our New York Times frontliner guy.

@stonetools: I thought that it (“free reign”) meant exactly that: freedom to “reign” over others. How could the word “rein” (a type of rawhide tether hooked to a horses bit, used to guide the horse) ? I will have to dust off my old college Harcourt- Brace grammar reference book on this one. Or just ask my next door neighbor’s child who is in middle school. Maybe they know.